Citation Nr: 1115900
Decision Date: 04/22/11 Archive Date: 05/04/11
DOCKET NO. 09-36 599 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. Moore, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1969 to September 1971. He served in the Republic of Vietnam from January 1971 to September 1971.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which granted service connection for posttraumatic stress disorder (PTSD), assigning a 10 percent evaluation, effective July 30, 2008. In May 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in September 2009.
In February 2011, the Veteran presented sworn testimony during a video conference hearing in Muskogee, Oklahoma, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file.
FINDING OF FACT
For the entire appeal period, the Veteran's PTSD has been manifested by depressed mood, anxiety, chronic sleep impairment with nightmares, and avoidance of crowds.
CONCLUSION OF LAW
The criteria for the assignment of an initial disability rating of 30 percent, but no higher, for PTSD have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.130, Diagnostic Code 9411 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).
The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. Veterans Claims Assistance Act of 2000 (VCAA)
With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2010).
Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claim, a letter dated in April 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio at 187.
Additionally, the April 2007 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment and personnel records, VA examination reports, and VA treatment records are in the file. Private treatment records have been obtained to the extent possible. The Veteran has at no time referenced outstanding records that he wished for VA to obtain or that he felt are relevant to his claim. Notably, at his February 2011 hearing, the Veteran indicated that he has not received psychiatric treatment other than a VA depression class, the treatment records from which have been associated with the claims file. Therefore, the Board finds that VA has satisfied its duty to obtain relevant records.
With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010).
The RO provided the Veteran with a VA examination for his service-connected PTSD most recently in December 2008. The examination involved a thorough evaluation of the Veteran. Additionally, the examination report is consistent with the Veteran's statements regarding his symptoms and the private medical examinations. Therefore, the Board finds that the examination is adequate for determining the disability rating for the Veteran's service-connected PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).
Additionally, there is no evidence indicating that there has been a material worsening in the severity of the Veteran's service-connected PTSD since he was last examined. See 38 C.F.R. § 3.327(a) (2010). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. Thus, the Board finds that a new VA examination is not necessary at this time.
As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
II. Merits of the Claim
The Veteran has been assigned a 10 percent evaluation, effective July 30, 2008, under Diagnostic Code 9411 for his service-connected PTSD. He seeks a higher initial rating.
Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2010). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2010).
The veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2010). Where the veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999).
The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 38 C.F.R. § 4.14 (2010). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).
The Veteran's service-connected PTSD has been evaluated under Diagnostic Code 9411. Under that diagnostic code, the General Rating Formula for Mental Disorders is used. The General Rating Formula provides that a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.
A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).
A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
Finally, a 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010).
Although PTSD is rated under the General Rating Formula, the use of the term "such as" in 38 C.F.R. § 4.130 indicates that the listed symptoms are not intended to constitute an exhaustive list. Rather, the symptoms listed under the General Rating Formula for Mental Disorders are to serve as examples of the type and severity of symptoms or their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the symptoms to be considered when rating a Veteran's PTSD are not limited to those listed in 38 C.F.R. § 4.130. Instead, VA shall consider all symptoms of a veteran's PTSD that affect his level of occupational and social impairment, including, if applicable, those identified in the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).
Within the DSM-IV, Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score is, of course, just one part of the medical evidence to be considered and is not dispositive. The same is true of any physician's statement as to the severity of a disability. It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record.
As referenced above, the Veteran underwent a VA examination most recently in December 2008. At that time, the examiner noted the Veteran's complaints of severe sleep disturbance, nightmares, intrusive thoughts, avoidance, anxiety, irritability, and depression. He reported keeping to himself, avoiding crowds, and having no friends outside of work. The Veteran relayed that he once broke his wife's nose while swinging his arms during a nightmare and has slept in a separate room from her since that incident. He indicated being employed at the same job for 22 years without formal discipline problems, but that he has taken sick leave after having been embarrassed by the way he has handled conflicts at work. He tends to get along with his co-workers. The examiner observed that the Veteran was well-groomed with adequate personal hygiene, maintained good eye contact, and appeared nervous and fidgety throughout the examination. He showed no signs of a thought disorder, impairment in communication, or inappropriate behavior. The Veteran denied hallucinations and delusions, suicidal and homicidal ideation, and current drug or alcohol abuse. Although he reported some difficulty with concentration, he did well on all cognitive testing. The examiner diagnosed the Veteran with chronic, mild PTSD and assigned him a GAF score of 70.
The Veteran previously underwent a VA examination in March 2008. At that time, he reported nightmares two to four times per week, flashbacks when he hears helicopters at work, and difficulty falling and staying asleep. The Veteran indicated that he had been married for over 20 years, and has a good relationship with his stepdaughter, a strained relationship with his stepson due to his legal problems, and regular contact with his siblings. He denied any mental health treatment, other than taking Ambien to help with sleep, and current suicidal or homicidal ideation. The Veteran relayed that he had some friends at work with whom he occasionally goes out to eat. The examiner observed that the Veteran was somewhat disheveled, having not shaved due to a skin rash, with no impairment of thought process or communication. Although the Veteran had some disruption in social functioning, he was able to maintain relationships outside of his family. The examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD or any other mental disorder. He indicated that the Veteran had some avoidance, re-experiencing, and arousal symptoms, but that they did not meet the criteria for a diagnosis of PTSD. He assigned the Veteran a GAF score of 62.
The medical evidence of record also includes limited VA psychiatric treatment records that are consistent with the VA examination reports. Additionally, the Veteran has submitted two private medical examinations addressing his psychiatric symptoms. A July 2008 private psychiatric evaluation by Dr. E. E. B. notes that the Veteran had decreased sleep overall with nightmares of Vietnam, avoidance of crowds and groups of people, and jumpiness. The Veteran denied current suicidal or homicidal ideation and hallucinations or delusions. Dr. E. E. B. observed that the Veteran was in obvious distress at the time of the interview, with fair grooming and hygiene. His mood and affect were dysphoric, but appropriate to the subject matter, and he showed no signs of a thought disorder. The Veteran had adequate cognitive function and judgment. Dr. E. E. B. diagnosed the Veteran with chronic, delayed, and severe PTSD, and assigned him a GAF score of 60.
The Veteran also submitted a September 2008 independent medical examination from Dr. J. W. E. Dr. J. W. E. noted the Veteran's complaints of nightmares, difficulty staying asleep, intrusive thoughts, difficulty refueling helicopters at work, and irritability. He referenced Dr. E. E. B.'s examination and concurred with that assessment. Dr. J. W. E. diagnosed the Veteran with PTSD and concluded that it caused at least a 50 percent impairment.
In addition to the medical evidence, the record also includes statements and hearing testimony from the Veteran and his friends and family. These lay statements reiterate the Veteran's problems with sleep and being around crowds.
With resolution of reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PTSD has resulted in occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Specifically, the Veteran has difficulty being in crowds, a limited numbers of social contacts, occasional difficulty handling conflict at work, and difficulty performing one of his work tasks, refueling helicopters. Additionally, he experiences depressed mood, anxiety, and chronic sleep impairment, and reports experiencing panic attacks. Additionally, his GAF scores of 60-70 indicate some mild to moderate symptoms (e.g. depressed mood and mild insomnia, some panic attacks) or some to moderate difficulty in social, occupational, or school functioning (e.g. few friends, conflicts with peers or co-workers). This level of severity equates to the symptoms set forth in the criteria for a 30 percent rating. Accordingly, the Board finds that his symptoms more closely approximate a 30 percent rating for PTSD throughout the entire appeal period.
However, although a higher initial rating is warranted for the entire appeal period, the evidence of record does not reflect symptomatology of PTSD that would meet the criteria for a rating in excess of 30 percent for any period of time during the pendency of this claim. While the evidence of record demonstrates occupational and social impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, it does not reflect occupational and social impairment with reduced reliability and productivity. Specifically, there is no evidence of flattened affect, circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, or impairment of short- and long-term memory, judgment, or abstract thinking. Although the Veteran reports some difficulty handling conflict at work and limited socialization, there is no evidence that he has difficulty establishing and maintaining effective work and social relationships. Notably, he reported a greater than 20 year marriage, good relationships with various family members, and some socialization with co-workers. The Board also notes that Dr. J. W. E. stated that the Veteran experiences a 50 percent impairment due to his PTSD. However, there is no indication that Dr. J. W. E. was referring to the rating criteria. Further, he does not provide evidence of symptomatology meeting or approximating the criteria for a 50 percent evaluation under VA regulations. Based on the evidence of record, a higher rating of 50 percent is simply not warranted.
Additionally, the Board notes that there is no indication in the evidence of record that the Veteran's symptomatology warranted other than the 30 percent disability rating assigned herein throughout the appeal period. As such, assignment of staged ratings is not warranted. See Fenderson, supra.
In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 30 percent for any time during the appeal period, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).
The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.
With regard to the Veteran's service-connected PTSD, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 30 percent disability rating contemplate his symptoms, including depressed mood, anxiety, and chronic sleep impairment. Further, the Board must consider any additional psychiatric symptoms that the Veteran exhibits, even if they are not specifically identified in the rating criteria. Thus, the Board finds that the Veteran's disability picture is adequately contemplated by the rating schedule. See Mauerhan, supra. As such, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.
In short, the evidence does not support the proposition that the Veteran's service-connected PTSD presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2010). Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted.
ORDER
Entitlement to an initial disability rating of 30 percent for PTSD is granted for the entire appeal period, subject to the laws and regulations governing the award of monetary benefits.
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BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs